804 F.

2d 678
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Marvin Jerrold PEREL, Plaintiff-Appellant,
v.
HEALTH CARE FINANCING ADMINISTRATION,
Defendant-Appellee.
No. 86-2055.

United States Court of Appeals, Fourth Circuit.

Submitted Sept. 29, 1986.
Decided Nov. 5, 1986.

Allan B. Rabineau, on brief, for appellant.

Breckinridge L. Willcox, United States Attorney, Joseph Sedwick Sollers,
III, Assistant United States Attorney, on brief, for appellee.
D.Md.
AFFIRMED.
Before RUSSELL, HALL and PHILLIPS, Circuit Judges.
PER CURIAM:

Marvin J. Perel appeals the district court's grant of summary judgment for
failure to exhaust administrative remedies in this action brought pursuant to
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e et
seq. We find no error in the district court's judgment and affirm.
On June 22, 1981, the defendant Health Care Financing Administration

(HCFA) posted a vacancy for a safety specialist position in its Division of

General Services. On August 10, 1981, the position was filled by someone
other than Perel. The selectee was a female.

Within the next month, Perel approached a union representative regarding the
matter of his non-promotion to the safety specialist position. On April 20, 1983,
Perel contacted an EEO Counselor at HCFA and initiated the procedures for
filing a formal written complaint. The counseling did not result in informal
resolution of the case, so Perel filed a formal complaint on May 12, 1983. The
complaint was dismissed on August 3, 1983, pursuant to 29 C.F.R. 1613.215
(1985) because Perel failed to contact an EEO Counselor within thirty days of
his non-promotion as required by 29 C.F.R. 1613.214(a)(1)(i) (1985). This
decision was affirmed by the Equal Employment Opportunity Commission
(EEOC) on July 13, 1984.

On August 16, 1984, Perel petitioned the EEOC to reopen and reconsider its
decision on the basis of newly discovered evidence demonstrating that the
complaint had been filed in a timely fashion by a union representative acting on
his behalf. On March 29, 1985, the EEOC issued a letter declining to reopen
Perel's case because the information did not meet the criteria for "new and
material evidence" and because the union representative could not have
fulfilled Perel's counseling requirement.

On April 30, 1985, Perel filed the instant action, alleging that the HCFA
discriminated against him on the basis of sex and religion by denying him a
promotion. The district court granted summary judgment for the HCFA,
finding that Perel failed to exhaust his administrative remedies in a timely
manner. This appeal followed.

The EEOC regulations clearly require that an aggrieved employee bring a

complaint to the attention of the EEO Counselor of the agency and participate
in counseling prior to the filing of a formal complaint. 29 C.F.R. Secs.
1613.213(a) and 1613.214(a)(1)(i) (1985). As the district court recognized in its
opinion granting summary judgment, to require the employee to be personally
involved at the counseling stage is sensible from a policy perspective:

In order to fulfill the goals of counselling, the aggrieved party should be present
to discuss an informal resolution of the matter. A representative may
accompany the complainant to the counselling session, 29 C.F.R. Sec.
1613.214(b), but in general may not substitute for the presence of the
complainant.

The district court correctly found that the language of 29 C.F.R. Sec.
1613.214(a)(1)(i) requires the complainant to personally contact the EEO
counselor with a complaint. The purpose of this requirement is to ensure the
initiation of counselling. The district court contrasted this language with part
(a)(1)(ii) of the same section, which allows the "complainant or his
representative" to submit a complaint after counseling has concluded.

In the present case, Perel did not personally contact the EEO counselor with the
matter of his non-promotion and did not participate in counseling until more
than one and a half years after the incident occurred. The district court
consequently concluded that Perel failed to present his claim in a timely
manner, and that such failure justified the EEOC's rejection of his claim. We
find no error in this conclusion.

10

Perel contends that the thirty-day period is subject to equitable tolling because
the HCFA engaged in affirmative misconduct which prevented him from
initiating a timely complaint. Perel raises this argument for the first time on
appeal, and we consider it waived. "Questions not raised and properly preserved
in the trial forum will not be noticed on appeal, in the absence of exceptional
circumstances." United States v. One 1971 Mercedes Benz 2-Door Coupe,
Serial No. 11304412023280, 542 F.2d 912, 915 (4th Cir.1976).

11

Accordingly, we affirm the judgment below. We dispense with oral argument

because the facts and legal contentions are adequately developed in the
materials before the Court, and argument would not aid the decisional process.

12

AFFIRMED.